Measuring Ordinary Meaning Using Surveys

Abstract

Giving statutes their ordinary meaning can contribute to the rule of law and legislative primacy. But this contribution is threatened if judicial tools for ascertaining that meaning — dictionaries, canons, and judges’ own linguistic judgments — are hostage to judges’ subjective idiosyncrasies and biases. Stiffening up that contribution requires measuring ordinary meaning objectively.

I argue and show that surveys can be used to measure ordinary meaning objectively. I measure how ordinary persons understand the scope of “using a firearm,” the scope of the adverb “knowingly” in a child pornography statute, and the meaning of “without knowledge or consent.” My results contradict some famous and controversial judicial interpretations and support others. I find that (i) the ordinary meaning of “using a firearm” has broader scope than using it as a weapon, (ii) swapping a gun for drugs and vice versa count equally as using a firearm, (iii) ordinary meaning can differ from grammatically correct meaning, and (iv) “without knowledge or consent” is genuinely ambiguous between “without knowledge and without consent” and “without knowledge or without consent.” I find that ordinary persons’ interpretations are more sensitive to their penal preferences than linguistic ability.

I find that surveys are simple, fast, and cheap enough for wider use by scholars, lawyers in disputes, and drafters of statutes and regulations. I argue that surveys are better than corpus linguistic methods at eliciting interpretations that are sensitive to specificities of text, fact pattern, and penal context.

I do not address (i) whether ordinary meaning should trump intention or purpose, (ii) how to synthesize meaning from multiple instances of the same phrase within or across statutes, or (iii) how to reconcile ordinary meaning with interpretive precedents. I only measure the ordinary meaning of a single instance of a single phrase within a general penal statute. However this is contribution enough. The interpretation of such single instances is often sufficient to generate controversy and drive court decisions. And we can’t reach the question of how to trade-off, synthesize, or reconcile multiple elements without first being able to measure each element independently.

To solve the thorny issue of how to weigh conflicting interpretive canons (or the dueling canons problem), I argue we should weigh them empirically, as the ordinary person implicitly weighs them when actually interpreting statutes.